SETLECH v. UNITED AMERICA

February 3, 1993

LINDA A. SETLECH, Plaintiff,
v.
UNITED STATE OF AMERICA, INTERNAL REVENUE SERVICE, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF EDUCATION, NEW YORK STATE HIGHER EDUCATION AND SERVICES CORPORATION, and COLUMBIA UNIVERSITY, Defendants.

For the reasons stated therein, the court hereby adopts in full the Report and Recommendation of Magistrate Judge Zachary W. Carter, dated October 23, 1992 ("Report and Recommendation"), and grants summary judgment in favor of defendants United States of America, Internal Revenue Service, United States Department of the Treasury, and United States Department of Education ("DOE").... The court writes only to address objections to the Report and Recommendation raised by plaintiff, Linda Setlech.

Ms. Setlech argues that her student loans, on which defendant DOE is trying to collect and which underlie her action, are unenforceable because she was mentally incompetent at the time she entered into these transactions. Ms. Setlech, who received a Bachelor of Arts in English Literature from Columbia University in 1977 and has apparently been accepted to graduate teaching programs at both Teachers College of Columbia University and New York University, has not, however, come forward with any evidence regarding her mental or medical condition as required by Federal Rule of Civil Procedure 56(e).... For example, she has not submitted any affidavit from a licensed physician, psychiatrist, psychologist, or other potential expert witness attesting to her mental incompetency at the time she signed her loan agreements. Neither has she produced any contemporaneous hospital or other medical reports, nor any adjudication of incompetence.... Conclusory statements are not sufficient to raise a genuine issue of material fact as to plaintiff's competency.See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).

Plaintiff further opposes summary judgment on the grounds that she never received 60-day pre-offset notice from DOE as required by 31 U.S.C. § 3720A (1992 Supp.).... In fact, the key issue before the court is whether DOE gave notice "'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action,'" not whether plaintiff received actual notice. Gerrard v. United States Office of Education, 656 F. Supp. 570, 575 (N.D. Cal. 1987) (quoting Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950)). The court concurs with Magistrate Judge Carter that pre-offset notice was issued by the New York State Higher Education Services Corporation, acting as agent for DOE, to plaintiff at her last known address and that such notice procedures fulfilled the due process requirements of reasonableness.See Report and Recommendation at 10-13.

Plaintiff's reliance on Gibson v. United States, 761 F. Supp. 685 (C.D. Cal. 1991), and Ringer v. Basile, 645 F. Supp. 1517 (D. Colo. 1986), in support of her objection to the notice procedure is misplaced.... In Gibson v. United States, the court held that actual notice of a tax deficiency pursuant to 26 U.S.C. § 6212 was required when the IRS failed to send notice to the taxpayer's last known address.... 761 F. Supp. at 688-89. In Ringer v. Basile, plaintiff sought to quiet title in property that was subject to a tax delinquency sale.... Neither case dealt with a claim of failure to receive actual notice in light of reasonable efforts to give notice.

For the reasons stated herein, the defendants' motion of summary judgment is hereby GRANTED.

SO ORDERED

Dated: Brooklyn, New York

February 3, 1993

REENA RAGGI

UNITED STATES DISTRICT ...

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